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Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use for details see www. University Press Scholarship Online. Publications Pages Publications Pages. Search my Subject Specializations: Classical, Early, and Medieval Plays and Playwrights: Classical, Early, and Medieval Poetry and Poets: Classical, Early, and Medieval Prose and Writers: One of the first acts of many of the new state legislatures was to adopt the body of English common law into the law of the state.
Citation to English cases was common through the 19th and well into the 20th centuries. Even in the late 20th and early 21st centuries, it is relatively uncontroversial for American state courts to rely on English decisions for matters of pure common i. Within the federal legal systems of several common-law countries, and most especially the United States, it is relatively common for the distinct lower-level judicial systems e. Particularly in the United States, the adoption of a legal doctrine by a large number of other state judiciaries is regarded as highly persuasive evidence that such doctrine is preferred.
A good example is the adoption in Tennessee of comparative negligence replacing contributory negligence as a complete bar to recovery by the Tennessee Supreme Court decision McIntyre v. Balentine by this point all US jurisdictions save Tennessee, five other states, and the District of Columbia had adopted comparative negligence schemes. Moreover, in American law, the Erie doctrine requires federal courts sitting in diversity actions to apply state substantive law, but in a manner consistent with how the court believes the state's highest court would rule in that case.
Since such decisions are not binding on state courts, but are often very well-reasoned and useful, state courts cite federal interpretations of state law fairly often as persuasive precedent, although it is also fairly common for a state high court to reject a federal court's interpretation of its jurisprudence. Nonpublication of opinions, or unpublished opinions, are those decisions of courts that are not available for citation as precedent because the judges making the opinion deem the cases as having less precedential value.
Selective publication is the legal process which a judge or justices of a court decide whether a decision is to be or not published in a reporter. Depublication is the power of a court to make a previously published order or opinion unpublished. Litigation that is settled out of court generates no written decision, thus has no precedential effect.
As one practical effect, the U. Department of Justice settles many cases against the federal government simply to avoid creating adverse precedent. Several rules may cause a decision to apply as narrow "precedent" to preclude future legal positions of the specific parties to a case, even if a decision is non-precedential with respect to all other parties. Once a case is decided, the same plaintiff cannot sue the same defendant again on any claim arising out of the same facts. The law requires plaintiffs to put all issues on the table in a single case, not split the case.
For example, in a case of an auto accident, the plaintiff cannot sue first for property damage, and then personal injury in a separate case. This is called res judicata or claim preclusion "'Res judicata'" is the traditional name going back centuries; the name shifted to "claim preclusion" in the United States over the late 20th century.
Precedent and the Court of Justice
Claim preclusion applies regardless of the plaintiff wins or loses the earlier case, even if the later case raises a different legal theory, even the second claim is unknown at the time of the first case. Exceptions are extremely limited, for example if the two claims for relief must necessarily be brought in different courts for example, one claim might be exclusively federal, and the other exclusively state. Once a case is finally decided, any issues decided in the previous case may be binding against the party who lost the issue in later cases, even in cases involving other parties.
For example, if a first case decides that a party was negligent, then other plaintiffs may rely on that earlier determination in later cases, and need not reprove the issue of negligence. For another example, if a patent is shown to be invalid in a case against one accused infringer, that same patent is invalid against all other accused infringers—invalidity need not be reproven.
Again, limits and exceptions on this principle exist. The principle is called collateral estoppel or issue preclusion. Within a single case, once there's been a first appeal, both the lower court and the appellate court itself will not further review the same issue, and will not re-review an issue that could have been appealed in the first appeal. Exceptions are limited to three "exceptional circumstances: This principle is called " law of the case ". On many questions, reasonable people may differ.
When two of those people are judges, the tension among two lines of precedent may be resolved as follows. If the two courts are in separate, parallel jurisdictions, there is no conflict, and two lines of precedent may persist. Courts in one jurisdiction are influenced by decisions in others, and notably better rules may be adopted over time. Courts try to formulate the common law as a "seamless web" so that principles in one area of the law apply to other areas. However, this principle does not apply uniformly. Thus, a word may have different definitions in different areas of the law, or different rules may apply so that a question has different answers in different legal contexts.
Judges try to minimize these conflicts, but they arise from time to time, and under principles of 'stare decisis', may persist for some time. A case of first impression known as primae impressionis in Latin is a legal case in which there is no binding authority on the matter presented. This case is also not regulated by statutory law. Such a case can set forth a completely original issue of law for decision by the courts.
A first impression case may be a first impression in only a particular jurisdiction. In that situation, courts will look to holdings of other jurisdictions for persuasive authority. Since the legal issue under consideration has never been decided by an appeals court and, therefore, there is no precedent for the court to follow, the court uses analogies from prior rulings by appeals courts, refers to commentaries and articles by legal scholars, and applies its own logic.
In cases of first impression, the trial judge will often ask both sides' attorneys for legal briefs. In some situations, a case of first impression may exist in a jurisdiction until a reported appellate court decision is rendered. In statutory law, the counterpart of a case of first impression is a legal gap. The different roles of case law in civil law and common law traditions create differences in the way that courts render decisions. Common law courts generally explain in detail the legal rationale behind their decisions, with citations of both legislation and previous relevant judgments, and often an exegesis of the wider legal principles.
These are called ratio decidendi and constitute a precedent binding on other courts; further analyses not strictly necessary to the determination of the current case are called obiter dicta , which have persuasive authority but are not technically binding. By contrast, decisions in civil law jurisdictions are generally very short, referring only to statutes. The reason for this difference is that these civil law jurisdictions apply legislative positivism — a form of extreme legal positivism — which holds that legislation is the only valid source of law because it has been voted on democratically; thus, it is not the judiciary's role to create law, but rather to interpret and apply statute, and therefore their decisions must reflect that.
Stare decisis is not usually a doctrine used in civil law systems, because it violates the legislative positivist principle that only the legislature may make law. Instead, the civil law system relies on the doctrine of jurisprudence constante , according to which if a court has adjudicated a consistent line of cases that arrive at the same holdings using sound reasoning, then the previous decisions are highly persuasive but not controlling on issues of law.
This doctrine is similar to stare decisis insofar as it dictates that a court's decision must condone a cohesive and predictable result. In theory, lower courts are generally not bound by the precedents of higher courts. In practice, the need for predictability means that lower courts generally defer to the precedent of higher courts. As a result, the precedent of courts of last resort, such as the French Cassation Court and the Council of State , is recognized as being de facto binding on lower courts.
The doctrine of jurisprudence constante also influences how court decisions are structured. In general, court decisions of common law jurisdictions give a sufficient ratio decidendi as to guide future courts. The ratio is used to justify a court decision on the basis of previous case law as well as to make it easier to use the decision as a precedent for future cases. By contrast, court decisions in some civil law jurisdictions most prominently France tend to be extremely brief, mentioning only the relevant legislation and codal provisions and not going into the ratio decidendi in any great detail.
This is the result of the legislative positivist view that the court is only interpreting the legislature's intent and therefore detailed exposition is unnecessary. Because of this, ratio decidendi is carried out by legal academics doctrinal writers who provide the explanations that in common law jurisdictions would be provided by the judges themselves. In other civil law jurisdictions, such as the German-speaking countries, ratio decidendi tend to be much more developed than in France, and courts will frequently cite previous cases and doctrinal writers.
However, some courts such as German courts have less emphasis on the particular facts of the case than common law courts, but have more emphasis on the discussion of various doctrinal arguments and on finding what the correct interpretation of the law is. The mixed systems of the Nordic countries are sometimes considered a branch of the civil law, but they are sometimes counted as separate from the civil law tradition. In Sweden , for instance, case law arguably plays a more important role than in some of the continental civil law systems. Some mixed systems, such as Scots law in Scotland , South-African law , and the law of Quebec and Louisiana , do not fit into the civil vs.
Such systems may have been heavily influenced by the common law tradition; however, their private law is firmly rooted in the civil law tradition. Because of their position between the two main systems of law, these types of legal systems are sometimes referred to as "mixed" systems of law. Louisiana courts, for instance, operate under both stare decisis and jurisprudence constante. In South Africa, the precedent of higher courts is absolutely or fully binding on lower courts, whereas the precedent of lower courts only has persuasive authority on higher courts; horizontally, precedent is prima facie or presumptively binding between courts.
Law professors in common law traditions play a much smaller role in developing case law than professors in civil law traditions. Because court decisions in civil law traditions are brief and not amenable to establishing precedent, much of the exposition of the law in civil law traditions is done by academics rather than by judges; this is called doctrine and may be published in treatises or in journals such as Recueil Dalloz in France. Historically, common law courts relied little on legal scholarship; thus, at the turn of the twentieth century, it was very rare to see an academic writer quoted in a legal decision except perhaps for the academic writings of prominent judges such as Coke and Blackstone.
Today academic writers are often cited in legal argument and decisions as persuasive authority ; often, they are cited when judges are attempting to implement reasoning that other courts have not yet adopted, or when the judge believes the academic's restatement of the law is more compelling than can be found in precedent. Thus common law systems are adopting one of the approaches long common in civil law jurisdictions. Justice Louis Brandeis, in a heavily footnoted dissent to Burnet v. Precedent viewed against passing time can serve to establish trends, thus indicating the next logical step in evolving interpretations of the law.
For instance, if immigration has become more and more restricted under the law, then the next legal decision on that subject may serve to restrict it further still.
The existence of submerged precedent reasoned opinions not made available through conventional legal research sources has been identified as a potentially distorting force in the evolution of law. Scholars have recently attempted to apply network theory to precedent in order to establish which precedent is most important or authoritative, and how the court's interpretations and priorities have changed over time. Early English common law did not have or require the stare decisis doctrine for a range of legal and technological reasons:.
By the end of the eighteenth century, the common law courts had absorbed most of the business of their nonroyal competitors, although there was still internal competition among the different common law courts themselves.
During the nineteenth century, legal reform movements in both England and the United States brought this to an end as well by merging the various common law courts into a unified system of courts with a formal hierarchical structure. This and the advent of reliable private case reporters made adherence to the doctrine of stare decisis practical and the practice soon evolved of holding judges to be bound by the decisions of courts of superior or equal status in their jurisdiction.
Stare decisis applies to the holding of a case, rather than to obiter dicta "things said by the way". As the United States Supreme Court has put it: In the United States Supreme Court, the principle of stare decisis is most flexible in constitutional cases:. Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right. But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions.
This is strikingly true of cases under the due process clause. For example, in the years —, the U. Supreme Court reversed itself in about cases. Supreme Court has further explained as follows:. In constitutional questions, where correction depends upon amendment, and not upon legislative action, this Court throughout its history has freely exercised its power to reexamine the basis of its constitutional decisions.
The United States Supreme Court has stated that where a court gives multiple reasons for a given result, each alternative reason that is "explicitly" labeled by the court as an "independent" ground for the decision is not treated as "simply a dictum". The doctrine of binding precedent or stare decisis is basic to the English legal system.
Special features of the English legal system include the following:. After this case, once the Lords had given a ruling on a point of law, the matter was closed unless and until Parliament made a change by statute. This is the most strict form of the doctrine of stare decisis one not applied, previously, in common law jurisdictions, where there was somewhat greater flexibility for a court of last resort to review its own precedent.
This situation changed, however, after the issuance of the Practice Statement of It enabled the House of Lords to adapt English law to meet changing social conditions. However, the Practice Statement has been seldom applied by the House of Lords, usually only as a last resort. As of , the House of Lords has rejected its past decisions no more than 20 times.
In particular, the Practice Statement stated that the Lords would be especially reluctant to overrule themselves in criminal cases because of the importance of certainty of that law. The first case involving criminal law to be overruled with the Practice Statement was Anderton v Ryan , which was overruled by R v Shivpuri , two decades after the Practice Statement. Remarkably, the precedent overruled had been made only a year before, but it had been criticised by several academic lawyers.
As a result, Lord Bridge stated he was "undeterred by the consideration that the decision in Anderton v Ryan was so recent. The Practice Statement is an effective abandonment of our pretension to infallibility.
Precedent - Wikipedia
If a serious error embodied in a decision of this House has distorted the law, the sooner it is corrected the better. A precedent does not bind a court if it finds there was a lack of care in the original "Per Incuriam". For example, if a statutory provision or precedent had not been brought to the previous court's attention before its decision, the precedent would not be binding.
One of the most important roles of precedent is to resolve ambiguities in other legal texts, such as constitutions, statutes, and regulations. The process involves, first and foremost, consultation of the plain language of the text, as enlightened by the legislative history of enactment, subsequent precedent, and experience with various interpretations of similar texts.
A judge's normal aids include access to all previous cases in which a precedent has been set, and a good English dictionary. Under the literal rule , the judge should do what the actual legislation states rather than trying to do what the judge thinks that it means.
The judge should use the plain everyday ordinary meaning of the words, even if this produces an unjust or undesirable outcome. A good example of problems with this method is R v Maginnis ,  in which several judges in separate opinions found several different dictionary meanings of the word supply. Another example is Fisher v Bell , where it was held that a shopkeeper who placed an illegal item in a shop window with a price tag did not make an offer to sell it, because of the specific meaning of "offer for sale" in contract law. As a result of this case, Parliament amended the statute concerned to end this discrepancy.
The golden rule is used when use of the literal rule would obviously create an absurd result. There are two ways in which the golden rule can be applied: Under the narrow method, when there are apparently two contradictory meanings to the wording of a legislative provision, or the wording is ambiguous, the least absurd is to be preferred. Under the broad method, the court modifies the literal meaning in such a way as to avoid the absurd result. Adler argued that he was not in the vicinity of such a place but was actually in it. The court chose not to read the statutory wording in a literal sense to avoid what would otherwise be an absurd result, and Adler was convicted.
The mischief rule is the most flexible of the interpretation methods. Stemming from Heydon's Case , it allows the court to enforce what the statute is intended to remedy rather than what the words actually say. For example, in Corkery v Carpenter , a man was found guilty of being drunk in charge of a carriage, although in fact he only had a bicycle. In the United States, the courts have stated consistently that the text of the statute is read as it is written, using the ordinary meaning of the words of the statute.
However, most legal texts have some lingering ambiguity—inevitably, situations arise in which the words chosen by the legislature do not address the precise facts in issue, or there is some tension among two or more statutes. In such cases, a court must analyze the various available sources, and reach a resolution of the ambiguity. The "Canons of statutory construction" are discussed in a separate article. Once the ambiguity is resolved, that resolution has binding effect as described in the rest of this article.
Julie Dickson and Pavlos Eleftheriadis
Although inferior courts are bound in theory by superior court precedent, in practice a judge may believe that justice requires an outcome at some variance with precedent, and may distinguish the facts of the individual case on reasoning that does not appear in the binding precedent. On appeal, the appellate court may either adopt the new reasoning, or reverse on the basis of precedent. On the other hand, if the losing party does not appeal typically because of the cost of the appeal , the lower court decision may remain in effect, at least as to the individual parties.
Occasionally, a lower court judge explicitly states personal disagreement with the judgment he or she has rendered, but that he or she is required to do so by binding precedent. In the United States, stare decisis can interact in counterintuitive ways with the federal and state court systems. On an issue of federal law, a state court is not bound by an interpretation of federal law at the district or circuit level, but is bound by an interpretation by the United States Supreme Court. On an interpretation of state law, whether common law or statutory law , the federal courts are bound by the interpretation of a state court of last resort, and are required normally to defer to the precedent of intermediate state courts as well [ citation needed ].
Courts may choose to obey precedent of international jurisdictions, but this is not an application of the doctrine of stare decisis , because foreign decisions are not binding. Rather, a foreign decision that is obeyed on the basis of the soundness of its reasoning will be called persuasive authority — indicating that its effect is limited to the persuasiveness of the reasons it provides.
Originalism is an approach to interpretation of a legal text in which controlling weight is given to the intent of the original authors at least the intent as inferred by a modern judge. In contrast, a non-originalist looks at other cues to meaning, including the current meaning of the words, the pattern and trend of other judicial decisions, changing context and improved scientific understanding, observation of practical outcomes and "what works," contemporary standards of justice, and stare decisis.
Both are directed at interpreting the text, not changing it—interpretation is the process of resolving ambiguity and choosing from among possible meanings, not changing the text. The two approaches look at different sets of underlying facts that may or may not point in the same direction-- stare decisis gives most weight to the newest understanding of a legal text, while originalism gives most weight to the oldest.
While they don't necessarily reach different results in every case, the two approaches are in direct tension.
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Originalists such as Justice Antonin Scalia argue that " Stare decisis is not usually a doctrine used in civil law systems, because it violates the principle that only the legislature may make law. By principle, originalists are generally unwilling to defer to precedent when precedent seems to come into conflict with the originalist's own interpretation of the Constitutional text or inferences of original intent even in situations where there is no original source statement of that original intent.
However, there is still room within an originalist paradigm for stare decisis ; whenever the plain meaning of the text has alternative constructions, past precedent is generally considered a valid guide, with the qualifier being that it cannot change what the text actually says. Originalists vary in the degree to which they defer to precedent.
In his confirmation hearings, Justice Clarence Thomas answered a question from Senator Strom Thurmond , qualifying his willingness to change precedent in this way:. I think overruling a case or reconsidering a case is a very serious matter. Certainly, you would have to be of the view that a case is incorrectly decided, but I think even that is not adequate. There are some cases that you may not agree with that should not be overruled.
Stare decisis provides continuity to our system, it provides predictability, and in our process of case-by-case decision-making, I think it is a very important and critical concept. A judge that wants to reconsider a case and certainly one who wants to overrule a case has the burden of demonstrating that not only is the case incorrect, but that it would be appropriate, in view of stare decisis, to make that additional step of overruling that case.
Possibly he has changed his mind, or there are a very large body of cases which merit "the additional step" of ignoring the doctrine; according to Scalia, " Clarence Thomas doesn't believe in stare decisis, period. If a constitutional line of authority is wrong, he would say, let's get it right. Professor Caleb Nelson , a former clerk for Justice Thomas and law professor at the University of Virginia, has elaborated on the role of stare decisis in originalist jurisprudence:.
American courts of last resort recognize a rebuttable presumption against overruling their own past decisions. In earlier eras, people often suggested that this presumption did not apply if the past decision, in the view of the court's current members, was demonstrably erroneous. But when the Supreme Court makes similar noises today, it is roundly criticized. At least within the academy, conventional wisdom now maintains that a purported demonstration of error is not enough to justify overruling a past decision. The doctrine of stare decisis would indeed be no doctrine at all if courts were free to overrule a past decision simply because they would have reached a different decision as an original matter.
But when a court says that a past decision is demonstrably erroneous, it is saying not only that it would have reached a different decision as an original matter, but also that the prior court went beyond the range of indeterminacy created by the relevant source of law.